This piece is part one in a series. For the full series go here.
Four fellow members of Australia’s highest civilian order — Companion of the Order of Australia — want former High Court judge Dyson Heydon’s appointment terminated.
Despite verified allegations of sexual harassment, Heydon has retained his AC.
Freestyle champion swimmer and former politician Dawn Fraser, tax lawyer Mark Leibler, former Qantas chairman Margaret Jackson and philosopher Philip Pettit, who each hold an AC, say they believe Heydon should not continue to hold the honour.
So far the Order of Australia honours secretariat has resisted calls to terminate Heydon’s appointment, given to only 35 people each year for “eminent achievement and merit of the highest degree for service to Australia or humanity at large”.
A stain on the nation
Heydon has faced numerous sexual harassment accusations, including the accounts of six women who worked as associates at the High Court during his tenure. Their allegations were independently verified by an inquiry commissioned by the High Court. One of these women, Alexandra Eggerking, a former associate of Heydon, has been vocal about her wish that he lose his AC.
In a statement to Crikey, Eggerking asked: “What does it say if Australia’s honours system allows those who use their positions of power to abuse and mistreat others to keep their awards? That is not a system of honour that earns my respect.”
Allegations against Heydon have emerged from various sources, including during his time as a visiting fellow at Oxford University, where he was nicknamed “Dirty Dyson”. Amid various sexual harassment accusations, Dyson’s visiting professorship was not renewed by the university.
It is axiomatic that members of the legal profession — especially judges — are expected to adhere to high standards both inside and outside the court. Behaving unethically undermines public confidence and is corrosive to the rule of law.
Fraser, Jackson, Pettit and Leibler all agreed Dyson should be stripped of his honour. He “brought discredit to the Australian awards by [his] appalling conduct towards women”, Jackson told Crikey.
Fraser offered her support to Crikey’s call to the Order of Australia, and Pettit said if his vote was relevant, he “would certainly support the expulsion of individuals with records of this kind from the Order of Australia”.
Leibler said that “learning of the behaviour of one of seven judges who presided over the institution that sits at the heart of our justice system was beyond appalling”.
Before responding to Crikey’s call, Leibler had made his own inquiries to the chairman of the Order of Australia.
In that vein, Pettit supports the formation of a committee to address the disrepute question in the case of Heydon, and “in the event of a positive finding, to make an appropriate recommendation to the governor-general”.
Leibler’s inquiry received the following response from the council of the Order of Australia:
In the council’s view, and as a general principle, for the order to be brought into disrepute a conviction, penalty or adverse finding must have occurred. In essence, the council recognises that the law prescribes behaviours, and expressions, which are abhorrent to society and therefore uses law as the threshold for termination and cancellation.
But Leibler disagrees with this interpretation, with the meaning of disrepute never formally defined in the Order of Australia constitution. Leibler’s full legal explanation in his own words can be read here.
Basis for termination
Broadly, the Order of Australia constitution’s terminations and cancellations ordinance gives six reasons why an award can be terminated. Each reason ultimately defers to the discretion of the governor-general, who is unofficially advised by the council of the Order of Australia.
An appointment can be terminated if the holder has “behaved or acted in a manner that has brought disrepute on the order” or if new information means “it would not have been desirable to make the appointment”.
It seems Heydon fits both categories.
Other reasons for termination include criminal convictions, civil penalties, adverse findings in court or administrative tribunals, and finding there was a false basis for the award. Leibler believes the High Court’s independent inquiry and compensation orders to Heydon’s victims should be considered sufficient to have brought disrepute to the order.
A call to reconsider
Heydon was made a Companion of the Order of Australia in 2004 for service to the law, his contribution to the legal profession, largely owing to his time as a judge of the High Court of Australia. Speaking on behalf of the court in a response to the independent report of Dr Vivienne Thom, Chief Justice Susan Kiefel said “we’re ashamed” that sexual harassment could be perpetrated in the High Court of Australia.
Heydon has let his practising certificate lapse and largely retreated from public life. But he continues to hold Australia’s highest honour.
